Monday, September 13, 2010

Scrutiny denied

The AEC has responded to scrutineers request for copies of the below the line preference data files to be made available for proper scrutiny.


scrutiny pronunciation[skroot-new] Show IPA
–noun, plural -nis.

  1. a searching examination or investigation; minute inquiry.
  2. surveillance; close and continuous watching or guarding
  3. a close and searching look.
Mr Paul Pirani, AEC legal Officer's, response (extract below) is a clear indication that the AEC is unwilling and incapable of self management in order to maintain an open and transparent electoral process.  Without access to the preference data-files it is impossible to properly scrutinise the conduct and counting of the election results.

Mr Pirani in his telephone conversation on Friday  falsely stated that to do so would nessiate the delay and stopping of the data-entry process.  This is not the case.  According to information provided by AEC staff, Ballot paper preferences are data-entered on stand alone computer terminals located in the counting room and the information and data is then copied on to a numbered USB drive and transferred to a central database terminal which is networked and connected to the Internet.   Networked computer terminals are set up that provide limited "Read Only" access to each ballot paper data record. The information that is available is limited by the method of access one record at a time. Copies of the data files can readily be produced and the integrity of the count is not compromised, nor is the secrecy of the ballot, as there is no means of identifying the voter.

Without copies of the data-files being progressively made available there is no means of monitoring the quality and integrity of the data stored or any means of ensuring that the information has not been tampered with over night. In expressing these concerns we are not implying that the AEC staff have in any way acted illegally, to the contrary, in all other aspects the conduct of the count of the election is exemplary, but it has been marred by the AEC's refusal to not subject the full details of the count to proper scrutiny.

There is no legal limitation that prevents access to the data files requested, in spite Mr Pirani's assertions that there is an "implied limitation".  This information was freely provided after the 2007 Federal Election (be it some three months after the declaration of the the poll). Mr Pirani stated that the information would only be made available on application under the provisions of the freedom from information Act and payment of $30 fee. (Something we consider to be an abuse of process given that this information should be readily and freely available)

It would have taken the AEC less then 3 minutes to make a copy of the requested data files, much less then it would have taken for Mr Pirani to espouse and pen the reply below.


I refer to your letter that was faxed to me after the close of business on 10 September 2010 and your email below.

I am instructed by the Australian Electoral Officer for Victoria (AEO) that AEC staff are still engaged in entering details from the Senate ballot papers into the AEC computer system and are yet to finalise the verification of that data. It is only after the conclusion of this process that the AEO will proceed with the running of the computer program to undertake the Senate count in accordance with the requirements of subsection 273A(5) of the Electoral Act.

The legal rights of a scrutineer to access information during the conduct of central Senate scrutiny (which is the process that is taking place now at the premises in Melbourne) are set out in subsection 273A(6) of the Commonwealth Electoral Act 1918 (Electoral Act). This subsection provides that:

(6) For proceedings under subsections (4) and (5) of this section, the requirements of paragraph 265(1)(c) are met if the scrutineers have access to:
(a) a record of the preferences on the ballot papers that have been received by the Australian Electoral Officer and whose details have been stored in the computer (including informal ballot papers, and formal ballot papers that are not sequentially numbered); and
(b) a record of the ballot papers that are notionally transferred, or exhausted, at each count; and
(c) a record of the progress of the count of the votes, at each count.

Implicit in the above is that the Parliament has determined that the duties of a scrutineer can be properly performed at this stage of the scrutiny process by a person only having access to the above information. Accordingly, there is no right for a scrutineer to demand access to all or any information that may be in the possession of the AEC as you appear to imply in your email and letter.

The rights contained in subsection 273A(6) of the Electoral Act are exhaustive as to what information a scrutineer is legally able to access and the timing of that access. When this is combined with the present fact that not all of the Senate ballot paper “details have been stored in the computer” at this time, this raises doubts as to a scrutineer’s legal right to access any of the data sets specified in your email and letter at this time. In relation to the timing of access, I am instructed that the AEO has not agreed to provide you with access to any data stored in the AEC computer until after the count has taken place.

Further, I note that there is no legal right or obligation placed on the AEC to provide any scrutineer with access to the information you are seeking in an electronic format. The AEC is only required to provide a scrutineer with access to “a record” of the three data sets specified in subsection 273A(6) of the Electoral Act.

Accordingly, I seek your specific response to exactly how each of the data sets to which you are claiming to require access to as a scrutineer falls within the scope of subsection 273A(6) of the Electoral Act.

While I am aware that following the 2007 general election, the AEC agreed to provide you with access to a CD Rom that included an electronic version of the verified “record of the preferences” stored in the computer and the details of each count, this was done as a private citizen with interest in electoral matters. I am currently instructed that the AEC is prepared to repeat this action following the return of the writs for the 2010 general election.

Yours sincerely

Paul Pirani
Chief Legal Officer
Legal and Compliance Branch
Australian Electoral Commission

T: (02) 6271 4474 F: (02) 6271 4457


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